Town Wants Monomoy Boundary Legislation Refiled

By: Tim Wood

Topics: Monomoy National Wildlife Refuge

The Monomoy National Wildlife Refuge.  FILE PHOTO

CHATHAM – Town officials have asked Congressman William Keating to refile legislation to define the western boundary of the Monomoy National Wildlife Refuge.

In September Keating filed a bill to reverse the U.S. Fish and Wildlife Service's claim to between 3,000 and 4,000 acres of submerged lands in Nantucket Sound west of the refuge. But the legislation expired when the last Congress adjourned and has to be filed again now that the 115th Congress has convened.

Officials say they believe the new Congress and administration, which has expressed support for minimizing federal control of state lands, might be more amenable to the legislation.

“I think Republicans have a warmer ear than Democrats for this type of disagreement,” said Chairman of Selectmen Jeffrey Dykens.

Selectman Seth Taylor said new leadership in the Department of the Interior and Fish and Wildlife Service may also be more open to an administrative solution to the dispute.

“Whoever replaces Daniel Ashe at the top of the Fish and Wildlife Service clearly has the potential to be more responsive to our issue,” Taylor said. “I think that's back on the table.” Resolving the dispute administratively, by having the agency rescind language in the Monomoy Comprehensive Conservation Plan that asserts jurisdiction over the disputed area, is “the shortest distance between two points” and would no doubt be swifter than legislation or litigation.

In December, Town Manager Jill Goldsmith wrote to Keating thanking him for his support of the town's effort to find a permanent solution to the western boundary dispute and urging him to reintroduce the legislation.

“Your leadership on this issue is essential and we know that you would not have introduced legislation if you did not share our commitment to the future successful and sustainable management of [the] Monomoy National Wildlife Refuge,” Goldsmith wrote. The town has been working closely with Governor Charlie Baker's office, she added “to develop support for the legislation, especially among the House Natural Resources Committee members.”

In a Feb. 2 letter, Goldsmith asked Baker to contact Republican Congressman Rob Bishop of Utah, chair the House Committee on Natural Resources, which has jurisdiction over the refuge system,and express his support for the legislation to Bishop. Before it can be acted on by the full Congress, the boundary legislation must be approved by Bishop's committee. Fifth Massachusetts District Representative Niki Tsongas, who has a home in Chatham, is also a member of the committee.

Rep. Ryan Rinke of Montana, who is the current nominee for interior department secretary, also served on the committee.

In the final comprehensive conservation plan for the Monomoy refuge approved last year, the Fish and Wildlife Service asserted ownership and jurisdiction over the submerged lands west of the refuge out to a boundary drawn when the refuge was established in 1944. Saying that the federal agency had previously not exercised any jurisdiction over this area, both the town and state objected, citing their centuries-long stewardship and regulatory oversight of the waters west of the refuge. The move was called an illegal taking by the federal government, and there was fear locally that the agency could shut down activities, including fishing and shellfishing, that had traditionally been conducted within the area and regulated by the town and state.

The Monomoy plan, which provided management guidance for the refuge for the next 15 years, banned a few activities within the disputed area – blue mussel harvesting, for instance – stating that there would be no change in traditional fisheries, but with the caveat “at this time.” There is concern locally that unforeseen fisheries or resources within the area could be out of bounds if federal officials rule their harvesting impacts the mission of the refuge, which is to protect nesting shorebirds.

Fish and Wildlife officials offered to jointly manage the area with the town and state, but for local officials, clarification of the boundary has always been the ultimate goal.

Town and state officials say that the original taking of the refuge by the federal government only included land to the low tide line and did not encompass the submerged lands. Federal officials say the line drawn in Nantucket Sound later clarified the boundary and included the 3,000 to 4,000 acres of Nantucket Sound waters. The agency never previously claimed the area and for decades left regulatory oversight of resources there to the town and state.

“We cannot let this illegal taking stand,” Goldsmith wrote in her letter to Baker, “and with your help, we believe Congress will return that area to its rightful owner, the Commonwealth of Massachusetts.” She noted that more than 20 Cape and Islands towns, as well as New Bedford, voices support for the effort, as well as local and regional chambers of commerce and other organizations.
Jeff Pike, a former Chatham commercial fishermen who is the town's representative on Capital Hill, was scheduled to meet with Keating on Tuesday to discuss the status of the legislation. With a new administration in town, he said he's been working on strategy with the office of Governor Charlie Baker.

The stated purpose of the bill filed by Keating last September was “To clarify the United States interest in certain submerged lands in the area of the Monomoy National Wildlife Refuge, and for other purposes.” The text read: “The Congress finds that the United States did not acquire any right, title, or interest in or to submerged lands in Nantucket Sound or the waters above such submerged lands as a result of the taking described in United States v. 3,000 Acres of Land, Misc. Civil Action No. 6340 (dated June 1, 1944).”

Specifying that the federal government did not acquire the area in question prevents it from regulating activity there, thus accomplishing the town's goal.

The legislation had garnered opposition from Mass Audubon and other environmental groups which feared it could result in the loss of other federal conservation lands.

Meanwhile, the approved Monomoy Comprehensive Conservation Plan is being implemented, Scott Kahan, regional chief of the National Wildlife System, wrote in an email Tuesday.

“We recognize that there are some issues that remain in dispute and we hope those issues will be resolved,” he wrote.

It may take a while to get the issue before newly appointed agency officials, Taylor said. In the meantime, it makes sense for Keating to refile the legislation, he said.

Attorney General Maura Healey put the Fish and Wildlife Service on notice last fall that if a resolution cannot be reached, the state was prepared to file suit in federal court over the boundary dispute. Officials said they prefer the legislative route, since litigation would would take considerable time and money.

“Massachusetts taxpayers should be not forced to pay the cost of litigation to retain their historic rights when legislation can easily rectify this injustice,” Goldsmith wrote.

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